A blog dedicated to all things related to real estate law in Florida including foreclosure, construction, homeowners associations, closings, refinances, leasing and title

Saturday, June 21, 2014

The Secret Language of Lawyers

All professions, be doctors, lawyers or baristas, have a
secret language or code, which serves to both assist the profession by
providing shortcuts for immediate explanations, but also to act as a barrier to
entrance and to make the profession appear more important and above the normal
person. Lawyers are especially not
immune to that view and the secret language of lawyers is a mixture of Latin,
Old French and Old English. While law
schools these days try and teach “Plain English for Lawyers,” all new initiates
seek to model their behavior like their peers, so the strange words continue to
be used. Here are some of the most
popular still used by lawyers in the real estate world.

Lis Pendens: A Latin phrase for notice of a pending
suit. Whenever an action involving real
property is filed, a Lis Pendens must also be filed to notify all parties that
an action involving a specific property has been commenced. Unlike pleadings, the Lis Pendens is also
recorded in the public records and allows the lawsuit to have priority over
subsequently filed liens, mortgages or other land interests (assuming the party
that filed the Lis Pendens prevails).

Ab Initio:
A Latin phrase that means from the start or beginning. Useful for conveying, at a later date, that
an obligation was meant to commence or was invalid at a certain point. For example, a defective contract (missing a
signature or key element) is often said to be void ab initio.

Caveat Emptor: A very popular Latin phrase for Buyer
Beware. In residential transaction, the
Florida Supreme Court has held it no longer applies (imposing a duty on
seller’s to disclose material information that affects the value of the house),
it still is prevalent in commercial transactions, as well as many contractual
arrangements (as they say, always read and understand the fine print, or get a
lawyer).

Allonge: An Old French law term that means to draw out. In common terms it is the endorsement on a
negotiable instrument, such as a promissory note or a check (yes, when you sign
your name on the back of a check you are creating an allonge in blank in favor
of the bank which is cashing or depositing the check. The phrase “Pay to the Order of XXX” is a classic example of an Allonge.

Tenements, Hereditaments and Appurtenances,
oh my: Latin phrases used in deeds to convey the bundle of rights in real property.
Tenements grant the right to hold the
land (as opposed to own, which is reserved for the King); Hereditaments grants the right of inheritance, used so that the
land conveyed goes to the buyer and their heirs; and Appurtenances are the improvements and fixtures attached to the
land. An example is from a quit claim
deed as follows: “TOGETHER with all the tenements, hereditamentsand
appurtenances thereto belonging or in anywise appertaining and all the
estate, right, title, interest, lien, equity, and claim whatsoever of said
Grantor, either in law or in equity, to only the proper use, benefit and behoof
of said Grantee, his heirs, successors and assigns forever.”

et al.: A
Latin abbreviation for et alii, it
simply means “and others” and is used as a useful shortcut to avoid having to
list all parties to an action or contract.

Chattel: Not to be confused with cattle (which are a
form of chattel), it is an Old French Law term meaning personal property. Mostly archaic, occasionally still used to
describe personal property or car loans such as a Chattel Mortgage.

Ultra Vires: A Latin phrase meaning “beyond power,” it
commonly comes up in disputes over corporate or substitute party actions as
whether the act of the corporate officer or attorney-in-fact was beyond their
legal authority. Ultra vires actions are unenforceable. In real estate, the use of powers of attorney
are often subject to ultra vires
attack, when actions are taken (sale or pledge of property) and the original
owner contends that they did not grant that power to the attorney-in-fact.

Hypothecation: A Latin phrase to pledge collateral. A mortgage on real property or chattel is a hypothecation. In Spanish, the word for mortgage is hipoteca, derived from this Latin word.

Fee Simple: Derived from the Latin term fief, was a feudal right granted by a
king or lord to allow use of lands in exchange for allegiance (which evolved
into paying taxes). Eventually came to
mean the right to own, mortgage, sell and devise land without a higher
authority claiming an ownership interest.
Most property interests today are conveyed in fee simple.

Knowing a few
Latin phrases can make you a hit at your next cocktail party. Just remember in vino veritas (in wine, truth) before you claim to be an expert
in Latin. There are lawyers everywhere
ready to out Latin the layman.

Michael J Posner, Esq., is a partner in Ward
Damon a mid-sized real estate and business oriented law firm serving all of
South Florida, with offices in Palm Beach County. He is Board Certified in Real Estate Law and
can assist sellers, buyers and community associations in all real estate matters. He can be reached at 561.594.1452, or at
mjposner@warddamon.com

I have always heard the word Ab Initio, but have never understood what it really meant. It really makes those papers that I've read from my real estate attorney make a lot more sense. It would be fun to start using these words in my every day language. http://www.brandtlawgroup.com

I knew that lawyers in particular still used Latin phrases, but I didn't know that some in the profession considered it outdated. Using English would make it easier to understand, I think. But every job has their short cuts to make things easier in the business. http://www.lisnowlaw.com

Angela, almost all law schools teach a course called Simple or Plain English for Lawyers using a book like this: http://www.amazon.com/Plain-English-Lawyers-Richard-Wydick/dp/1594601518. The goal is to get away from archaic writing including using latin and old french phrases, plus wheretofore, heretofore, hereinafter, party of the first part, witnesseth, etc. Well guess what? It won't work because all professions need to feel special and using this language separates lawyers so they will continue to use these words (and I do to :) ) because their mentors did and it allows us to communicate effectively with other lawyers.

I've always wondered what some of these terms meant. My dad is a real estate lawyer. I've heard him used some of these terms before, but I've never understood what they mean. Now I know what my husband is talking about when he talks about things like fee simple and hypothecation in his business calls. Deanna R. Jones | http://www.houselawyerny.com/about_me.html

Thank you! It's so nice to find a site that tries to explain lawyer jargon in plain English. I appreciate the effort a lot. Is it odd that I knew some of these phrases from playing the violin? Latin always comes back to help!

It is funny- I am very used to this type of language since my father was a lawyer. He would teach us these types of words because we thought they sounded so cool when he said them. I forget, though, that many people don't know the phrases like "subpoena" or "ab initio". Thanks for sharing this- it brings back a lot of good memories for me!

I watch a lot of courtroom dramas on TV, so I thought I was really well-versed in legal lingo. This article proved me really wrong, though. Thank you for sharing these super useful terms! This could really come in handy next time I move and I have to hire a real estate lawyer. --------------http://www.kasman.com/real_estate_law.html

About Me

I am a Florida Board Certified Real Estate Attorney with 30+ years of residential and commercial real-estate experience.
I am an equity partner in Ward, Damon, Posner, Pheterson & Bleau, a mid-sized law firm serving all of South Florida, with three offices in Palm Beach County. Our firm specialize in and can assist in buying, borrowing and selling property throughout South Florida. I can be reached at 561.594-1452, mjposner@warddamon.com or www.warddamon.com